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2003 Supreme(Gau) 489
IN THE HIGH COURT OF GAUHATI
P.P. Naolekar and Iqbal Ahmed Ansari, JJ.
Board of Directors, Ascard Bank Ltd. and Ors.
Vs.
Baharul Islam and Ors.
Writ Appeal Nos. 554, 721, 722, 723, 724, 725, 726, 727, 728, 729 and 730 of 2002
Decided On: 06.11.2003
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: H.N. Sarma, A.K. Sharma and S. Dhar, Advs.
For Respondents/Defendant: S. Ali and B.Seal, Advs.
The main legal point established in the judgment is that termination of services without following the provisions of Section 25F of the Industrial Disputes Act, 1947 is contrary to the law and can be set aside by the court.
Headnote:
Industrial Disputes Act - Termination of Services - Section 25F
Fact of the Case:
The court heard appeals filed by the ASCARD Bank challenging the order of termination issued by the bank. The bank terminated the services of the workmen without following the mandatory requirement of Section 25F of the Industrial Disputes Act, 1947.
Finding of the Court:
The court found that the termination of services without following the provisions of Section 25F of the Act was contrary to the law and rightly set aside by the learned Single Judge. The court also dismissed the appeals against the judgment in cases where the pleadings were made regarding non-compliance with Section 25F.
Issues: The issues included whether the termination of services without following the provisions of Section 25F of the Act was justified and whether the court had the jurisdiction to entertain the petitions under Article 226 of the Constitution of India.
Ratio Decidendi: The court held that any termination not falling within the category enumerated in Section 2(oo) of the Act would be considered as retrenchment, and the employer is required to follow the provisions of Section 25F of the Act before adopting the procedure of retrenchment.
Final Decision: The court dismissed the appeals against the judgment in cases where the pleadings were made regarding non-compliance with Section 25F and modified the order to relate to the petitioners whose writ petitions were allowed and writ appeals were dismissed.
1. Heard Mr. H.N. Sarma, learned counsel for the appellants and Mr. D.K. Mishra, learned counsel for the respondents.
2. Judgment is delivered by the learned Single Judge in 13 writ petitions allowing the petitions filed by the workman setting aside the order of termination issued by the Assam State Co-operative Agricultural & Rural Development Bank Ltd. hereinafter shortly called 'ASCARD Bank', holding that the ASCARD Bank has not followed the mandatory requirement of Section 25F of the Industrial Disputes Act, 1947 while terminating the services of the workmen. These 11 (eleven) different appeals have been preferred by the ASCARD Bank challenging the order passed by the learned Single Judge.
3. It is contended by the learned counsel for the appellant that in Writ Appeal Nos. 721/2002, 727/2002, 729/2002, 730/2002, and 554/2002 arising out of WP(C) No. 1140/99, WP(C) No. 1567/99, WP(C) No. 863/99, WP(C) No. 1963/99 and WP(C) 1503/99 there is no pleading to the effect that petitioners' termination was contrary to the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter shortly referred to as 'the Act') and therefore, the appellant ASCARD Bank was handicapped in not placing the relevant materials before the court to indicate that the provisions of Section 25F of the Act has no application, they not being the workmen within the meaning of Section 2(s) of the Act, the termination of these workmen cannot be held to be a retrenchment as contemplated in Section 2(oo) of the Act and in the absence of retrenchment, provision of Section 25F of the Act do not apply. The learned Single Judge has committed an error in deciding the matter in absence of necessary pleadings. It is further submitted that the fact whether the provision of Section 2(oo) of the Act is applicable or not can be determined by the Court only on the basis of proper pleadings and placement of and consideration of relevant materials produced by the parties before the Court. The court's adjudication on that question could only be after the placement of relevant facts before the court and in that view of the matter the court should have directed the petitioners to approach the Industrial Tribunal instead of deciding the matter in exercise of its writ jurisdiction. However, the learned counsel has fairly conceded that there are allegations made by the petitioners workmen in writ petitions W.P.(C) No. 1214/99, W.P.(C) No. 1090/99, W.P.(C) No. 1417/99, W.P,(C) No. 982/99 and W.P.(C) No. 742/99 corresponding to Writ Appeal Nos. 722/2002, 723/2002, 724/2002, 725/2002, 728/2002 and 726/2002 respectively that they are workmen within the meaning of the Industrial Disputes Act and that their terminations are being effected without following the legal procedure, namely, the procedure laid down under Section 25F of the Act before orders of termination. Therefore, we propose to decide only those matters where the pleadings have been made by the petitioner of not following the provisions of the Act, particularly Section 25F of the Act before orders of termination were issued. In these matters the petitioners have taken a specific plea that they have been employed by the ASCARD Bank and that they are workmen within the meaning of the Industrial Disputes Act, 1947. It has also been pleaded that their termination is being effected without following the provisions of Section 25F of the Act.
4. The appellant ASCARD Bank has submitted its return in these cases before the learned Single Judge. It appears from the return submitted by the appellant Bank that no case has been raised by the Bank that the petitioners are not workmen and therefore their termination cannot be termed as retrenchment under Section 2(oo) of the Act. The appellant Bank has not even raised the plea that the provision of Section 25F of the Act has no application to the cases of the petitioners. It is not the case of the Bank that the provisions of the Industrial Disputes Act will not apply to
